Author.. 




Title 



Imprint. 



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HISTORICAL MAXIMS 



FOR TROUBLED TIMES 



J^]Sr A.ID3DK.ESS 



BEKOKE THE 



LAW DEPARTMENT 01^^ YALE COLLEGE, 



A'l' COMMENCEMENT, JINE .^7, 1877. 



JACOB D. COX 



lOLEDO. OHIO: 

I'.I.AUK I'RINTING AND PAi EX COM I ANY. 
.S77. 



^^ 



HISTORICAL MAXIMS FOR TROUBLED TIMES. 



When the late war was just ended, and we were 
turning our thoughts to the question of building a re- 
stored nationality upon the fields of our great struggle, 
I remember being struck by a remark of one of our 
countrymen abroad, in a letter to a leading newspaper 
at home. He said the thing he most desired to do was 
to commend his fellow citizens to a prayerful study of 
history. His words pithily expressed the feeling wdiich 
sagacious men must very commonly have had, that the 
test of our political wisdom was upon us; that the great 
danger w'as that we should be too much ruled by the 
passions and prejudices engendered by strife, failing 
to remember the lessons w^hich past events might teach, 
and so should fall into wrongs or blunders that would 
bring a train of evils from which we could only redeem 
ourselves at irreat cost and with Qfreat sufferino-. 

It was evident to all who would think, that the work 
of pacification and of adjusting- the constitution of the 
country to the new circumstances of the nation, was 
one of great difficulty and delicacy, but it was very far 
from being evident whether wisdom w^ould be listened 
to and the fundamental laws of human nature and 
human society be regarded in the legal settlement we 
were to make. 



y An A (/(/;' t'ss .■ 

The solicitude of our countrjnian abroad was there- 
fore most natural, and was doubtless shared by the true 
friends of civil liberty and of progress throughout Chris- 
tendom. How have these hopes been justified, and 
their fears happily disappointed ? We are just closing 
the first great epoch of our reconstruction, and it seems 
to me not inappropriate to compare some points in our 
experience with those of other nations, and to inquire 
whether our history has confirmed the general maxims 
which wise historians have drawn as conclusions from 
the conduct of other peoples in times of revolution and 
convulsion. I propose further to ask your attention to 
the tendency of even the most enlightened societies to 
forget these lessons of experience at the very time 
when they may be most useful, that is to say, at the 
lime when they are passing through e\'ents similar or 
at least analogous to those of other times. 

In doing this I shall of necessity limit m)'self to 
matters which may fairly be treated as already settled 
by the course of events, and shall avoid those which 
may either be still the subjects of partizan political dis- 
cussion, or which like the great problem of the ultimate 
relations of the diverse races of men among us, are 
either too \ast or are )et too far from ultimate settle- 
ment. 

We must beware also that wc do nol mistake the 
spirit in which history should be questioned, and look 
only for a superficial similarity ot events, where we 
ought to seek principles of action which may be trusted 
to indicate, probable results in human conduct when 
like circumstances exist. We must avoid taking the 
record of the past in what a modern master of his- 



Historical Maxims for Troubled Tiines. 



torical writing calls " the vulgar sense" — merel)- trying 
to collect from its leaves " the symptoms for a political 
diagnosis and the specifics for a prescription, "■•' 

Modern literature contains the inestimable treasure 
of a large body of historical books written by men who 
have had the true philosophic character, and who have 
often united judicial solidity of judgment with a greed- 
iness of work which has made them delight in the la- 
borious and minute investigations of facts necessary to 
lay the firm foundation for broad and just generaliza- 
tions. Not a few of these writers have had the still 
further advantage of being themselves actors, and act- 
ors of no mean rank, in the theatre of great public af- 
fairs, and their judgments and opinions come to us 
with the authority at once of philosophers and states- 
men. When a Guizot discourses of the great English 
revolution, we are not merely receiving the encourage- 
ments to faith in popular progress and the warnings 
against passionate popular impulses which a clever 
theorist might draw from the story ; but we listen to 
the oracles of a wisdom matured in an experience ex- 
tending through the period of most startling revolu- 
tions in his own country, — a wisdom sobered by the 
disappointments of more than half a century of effort 
to lead France to a practical faith in constitutional 
ofovernment. In listening to such a teacher we are 
privileged to combine the practical advice ot a most 
able minister of a great government with the wise ob- 
servations of the r^pe and sagacious scholar analysing 
events of prime importance to all mankind. How 
happy do we think a people which may call to aid the 



*Motnm>cn's Rome, 4, 556. 



6 An Address 



counsels of statesmen at once able and honest! In a 
i^reat crisis the need of such guidance is multiplied at 
the very time when it is most difficult to obtain it. 
The men whose judgment would be calm enough to 
make it valuable, are too often regarded with disfavor 
because they do not echo the full stress of popular ex- 
citement. The hero of the day is the man who in word 
or act most completely embodies the popular impulse. 
A statesman at such a time may have the sagacity of 
Neckar at the beginning of the French Revolution of 
1789, but he only makes more strikingly true the con- 
clusion which Mignet draws from the career of Neckar, 
that " a man is of small account In a revolution which 
deeply moves the masses ; the swell carries him along 
or leaves him ; he must keep in advance or be trampled 
upon.""'" 

It may appear that it is of little use to argue the 
value of the lessons of history, if they will not be listen-' 
ed to at the time they are most needed ; but the objec- 
tion Is only valid in part. The people that is well in- 
structed in past experience, is by virtue of this educa- 
tion less likely to be swept away by mere excitement. 
It Is one of the blessino-s of a wide diffusion of intelll- 
gence and cultivation, that it makes a whole nation as 
self-restrained and moderate in conduct as the chosen 
few would be in a community less instructed. The 
France of 1870 was a different thing from the I'^rance 
of 1793, because the people had profited by the terrible 
experience of their fathers, and ^though the Gallic 

•■"' Un homme est bien pe\i de clio.se i)en(laiit uue revolution (jui reiuue 
'• les masses ; le mouvenient rentraiiie ou ral)an<lonnc ; il faut qu'il precede 
"<ni surcombe." ^lifrnct, Hist, dc la Kev. Kran(ais(>, v. 1. 11. Otl. 



Historical Maxims for Troubled Ti7nes. 7 



blood may be supposed to course the veins as impet- 
uously now as in the last century, better knowledge 
has begotten self-control, and the people who we 
used to fear were incapable of a wise use of freedom, 
seem to have learned in one generation the lessons of 
political tolerance and of faith in reason more than in 
violence. The way of legislative reform and peaceful, 
constitutional progress seems fully open to them, and 
we may point to them as a convincing proof that the 
study of past mistakes is fruitful in present wisdom. 

Fully admitting, therefore, that in the very gust and 
whirl of passion one can no more reason with an angry 
people than with an angry man, it still holds true that 
when the tempest passes it is good to reflect upon the 
sins of omission and of commission that every troubled 
time is full of, for thus only can we get reasonable as- 
surance that we may grow into wqse self-control, and 
make our future conduct worthy of a better age. 

When the Reign of Terror was beginning, Camille 
Desmoulins made appeals to his countrymen for mod- 
eration, so eloquent, so full of truth and of honest fer- 
vour, and so replete with argument from history, that 
it seems hicredible he was not listened to. His famous 
picture of the times of Nero, might, one would think, 
have made Marat himself pause, when he saw the con- 
sequences of the breaking down of private faith and 
neighborly confidence and of letting remorseless fanati- 
cism make a war of extermination upon all who did not 
shout the popular shibboleth. The very word " sus- 
pected " ought to have been a potent warning from 
that day when the vivid scene was drawn of the time 
in Rome when every public and private virtue, wealth 



8 An A d dress : 

or poverty, public activity or studious retirement, levity 
or melanchol)^ were in turn made the occasion of a 
tyrant's suspicions and the pretext for a citizen's de- 
struction.""' 

But the belief that the annihilation of aristocrats 
was the means of establishing popular liberty had be- 
come the insane ' hxed idea ' of the populace, and they 
were deaf to all appeals. Yet those very horrors against 
which Desmoulins warned in vain, have given such 
point to the lesson he would have taught, that to-day 
France in common with the civilized world shudders 
at the word which was then so fatal to her best citizens, 
and has learned the moderation she then contemned. 

One ot the first lessons, therefore, which history 
gives in response to our questioning, is that there is lit- 
tle use in referring an excited people to the experience 
of other nations in siniilar circumstances, unless the 
habit of respecting and weighing such examples has 
already been found ; but this rather depressing view of 
the case is pretty well counter balanced by the encour- 
aging statement that just in proportion as this habit of 
intelligent study of the past is cultivated, shall we in- 
crease the safe-guards against extravagant and merely 
passionate conduct in critical times. Though we can- 
not undo any follies we may have committed, we can 
learn by our errors, and lessen the chances of future 
ones. 

Another general proposition drawn from the history 
of revolutionary periods is, that the motives publicly 
professed as ruling ones, are apt to be very much nobler 
than those which actually control. 

*Mignet's Fr. Rev., a, ;,l^ 



Historical Maxims for Tj'oiid/ed Tini3s. g 



This need not mean that there is conscious hypoc- 
risy, for few things in this world are so earnest and sin- 
cere as the beginnings of great popular movements. 
The first step is hardly taken, however, before the cool 
observer will see the generous self- forget fulness of first 
impulses tempered and warped by all sorts of selfish 
considerations and personal or party ambitions. 

The love of power and dominion itself grows so 
rapidly in the use of it, that a party or a dominant fac- 
tion often passes unconsciously from devotion to a 
principle over to a struggle for continued ascendanc}. 
So constant is this tendency of human nature that it 
may be broadly declared that no popular struggle ever 
occurred in which examples of its action were lacking. 
Burke refers to it in his celebrated Bristol letter, once 
a sort of political creed for Americans but now-a-days 
seldom referred to. He says, "contending for an im- 
' aginary power we begin to acquire the spirit of domin- 
' ion, and to lose the relish for honest equality. " ■^'' the 
'least resistance to power appears more inexcusable in 
' our eyes than the greatest abuses of authority. ^ ^'' 
' We are taught to believe that a desire of domineering 
'over our countrymen is love to our country !" These 
words ouofht certainlv to have no less weight with us, 
because they were written in our defence at the open- 
ing of the first great c()ntrovers\" with the mother 
country. 

An acute French writer whom 1 have already cjuot- 
ed, (Mignet) applies the same principle to his own 
countrymen, saying, " In Trance, love of liberty is, a 
little, the liking for power," and again, more didacticall)- 
if less wittilv, " It must never be foro-otten that in rev- 



10 An Address: 

' olutions men are moved by two tendencies ; love of 
' their ideas and a taste for domination. The members 
' of the Committee (of public safety) at first exerted 
'themselves for the triumph of their democratic theo- 
' ries ; they ended by strngglincr for the possession of 
' power,""^" 

It would be vain to hope that pure and unmixed jus- 
tice, reason and moderation should always rule even 
the ordinary affairs of men, much less the great con- 
vulsions of human society ; but we may rightly ask, 
when the first violence of the storm has passed, that 
sound principles should again be heard, and that we 
should bring our conduct to the test of honest self-ex- 
amination. We may find both moral and mental ad- 
vantage and satisfaction in the effort to compare what 
we have done and are doino- with those immutable 
principles of right which are glibl)- at our tongue's end 
when we have no need to use them. A people's con- 
science, like a man's, is a thing that may be cultivated 
and enlightened, and the means and occasion for doing- 
it are practically the same. 

Even when the community as a whole means to do 
the right and noble thing, the personal ambitions of lead- 
ers or would-be leaders, too often make use of the pop- 
ular earnestness of purpose to turn the current to their 
own advantage and make the noisy and hollow profes- 



" En France, I'amour de la lilx-rtrost, un jk'H. Ictiout ile pouvoir." Hist. 
<le la Kcv. Fran^aiise, vol. 1, p. US. " II no faut jamais oublier qu'on ivvolu- 
" tion les honnncs sont mile par deux penchants, rumour de leurs idees et lo 
"goutde conunandement. Les niembres du ("oniit<5, au connnencenient, 
"s'f'tendirent i)0ur le triomphc de leur.s idCH\s dCinoci-ati<iues ; a la fin il se 
" conibattirent ]H>ur la possession du pouvoir." Id. 2, (SO. 



Hisiorical Maxims for Troubled Times. ii 



sion of high moral principle serve merely selfish ends, 
from the vulgar putting of money in their purses up to 
the grasping of governmental control. Here again we 
should clearly recognize the fact that we can create no 
Utopias, nor can we look very closely into the personal 
motives men have for supporting a good cause. We 
can, however, cultivate a prudent cautiousness of com- 
mittal to any leadership of a merely partizan character, 
remembering that the maxim " the King can do no 
wronof " is as much in vooue in free orovernments as in 
any other; parties and party leaders being substituted 
for the king. No road to power is so easy as lusty 
shouting for what is supposed to be the popular purpose 
of the moment, and it is only too notorious that dema- 
gogues are peculiarly strong in the lungs, and the less 
of principle they have the more reckless they are in 
strivino- to out-herod Herod; beino- free from the cau- 
tion or the solicitude for ultimate results which in crit- 
ical times often weighs heavily upon the truest friends 
and original champions of a great cause. Sooner or 
later the reaction comes and with It the process of dis- 
illusion. The danger then Is, that In the disgust peo- 
ple feel at the hypocrisy which has deceived them, 
they will go too far in their skepticism of all good, and 
listen too much to those who preach a cynical con- 
tempt for all principle, because the names " patriot," 
" reformer " or " christian statesman " have been dis- 
graced by knaves who have used them as the cloak for 
rascality. Thoughtful study of human nature as Illus- 
trated by history would moderate the hero-worship and 
save the need of unhappy reaction. It would have the 
effect disciplined Intelligence always has, of cultivating 



12 A 71 Address: 

self-restraint and sound judgment, and of saving nations 
as it saves individuals from the humiliating deceptions 
ol "confidence men" upon the street or in politics. — 
Even here, however, history warns us to qualify our 
expectations, and to remember that when we have done 
our best to reach sound judgments upon current affairs, 
those who witness them will still fail to free themselves 
entirely from the passions of the moment, and in their 
close proximity to great events will somewhat misjudge 
their proportions and their perspective. 

Guizot has well stated this, in his History of the 
Cromwellian Revolution, discussing the manner in 
which Monk deceived the republicans of his day, and 
secured the restoration of the Stuarts while the popu- 
lar party believed him still true to them. He says 
" There are no deceptions so gross nor inconsistencies 
' so striking that cotemporaries are not easily misled by 
' tliem ; for events and men are only clearly viewed from 
'a distance, and the current time, is, for those who live 
' in it, full of uncertainties and of shadows.""' 

Another direction in which we need to be on our 
guard against mistaken and dangerous tendencies, is 
iound in the disposition to confound the essential char- 
acter ot political and common crimes. It is hard, es- 
pecially for the unreflecting, to understand how an of- 
fense which we claim the right to punish even with 
death, can differ in moral character from theft, murder, 
or arson. The disposition in human nature to note 



■*" II n'y a point de mensonges si grossiers ni de contradictions si cho- 
" (luantcs quo los contomporains ne s'y laissont aisCment trompcr; car les 
" 6v6nonuMits et les liommes no sont olair (|uo vus do loin, ot le temps prf'- 
■'sont est, pour ooux qui y vivout. ])U'iii (I'inccrtitudcs ot do tfneliros." 
Hist. "Rev. AngU'terre, vol. (i, i*. I'll. 



Historical Maxims for Troubled Times. i 



only broad and coarse distinctions constantly leads to 
the conclusion that we ought either to inflict no punish- 
ment for apolitical offense, or we should regard the of- 
fender as fallen into the same moral degradation and 
turpitude as the commonest felon and outcast. During 
the heat of a revolutionary conflict, the necessity of the 
stimulus of strong feeling and of fervid enthusiasm to 
make possible the great deeds or the great sacrifices 
upon which success depends, produces an unwillingness, 
even in the most temperate of men, to think of those 
things which would rob his will of more than half its 
force. We decline to consider what may be the motives, 
of those who, on the one hand, are trying to overthrow 
institutions upon which we think the happiness and 
progress of mankind depend, or on the other hand, are 
seeking to fasten upon us what we regard as the chains, 
of tyranny. 

It would never do for the soldier ofoing into battle 
to think upon the desolate homes, the heart broken, 
wives and children for whom the whole liorht of life is 
to be blotted out by the struggle of the day. His arm 
would lose its nerve, hi^, heart would prove cowardly if 
these immediate consequences of his acts were too vivid- 
ly before him. He must look away to the greater re- 
sults, the really noble purposes for which he is combat- 
tinor, if he would rouse the heroic enthusiasm which 
makes him ready not only to do but to suffer for a 
good cause. 

In a less degree the same influences operate upon 
the private citizen, who must determine what party and 
what measures to support in such times of public peril 
and excitement, and upon the statesman who bears a. 



^4 



An Address 



large part of the responsibility for the decision which 
may put armies in motion or prolong the terrible de- 
struction of war. 

In the scriptural assignment of a time for all things, 
we may justly say there is a time when men may be 
deaf to appeals to sympathy, to the arguments that re- 
bellion is begun with plausible if not praiseworthy 
motives, to everything in short which would weaken 
the resolve to drive inexorably onward to the triumph 
of the right as we see and know it. 

But there are also times when it becomes a sacred 
duty to calm the passions of strife, and to give full 
weight and force to all considerations which would dis- 
arm vengeance and even seek with earnest solicitude 
to revive all the sweet influences of peace and concord. 
By the common consent of all generous and enlightened 
minds the victory of either party to a great civil con- 
flict should sound the hour for this return to the exer- 
cise of the milder and more grateful forms of human 
action. 

Men have always praised the clemency of conque- 
rors, not only because it showed the virtues of amiabil- 
ity and moderation, but because they have recognized 
the sound policy of it, and have seen that it is in a vast 
majority of cases the way to reach a desired result with 
least cost. In the case of civil convulsions, where the 
temptation is greatest to continue the sufferings of war 
under the name of punishment for treason, it has come 
to be an axiom among the nations of Christendom, that 
severe penalties have no virtue if they are extended 
beyond a very few persons who may justly be made 
examples of. Even in these cases the object is less to 



Historical Maxims for Troubled Times. /j 



retaliate for the specific acts they have committed than 
to make public exhibition of the judicial condemnation 
of the cause which has been lost. The public senti- 
ment of any civilized community would revolt at whole- 
sale executions or imprisonin^s at such a time. The 
most philanthropic of philosophers would say that trea- 
son is justly punished by death ; but only a monster 
would draw the conclusion that the penalty may be 
visited upon millions at once. It is not only that hu- 
manity revolts ; logic also recognizes an element of fal- 
lacy in the reasoning itself, and demands that we shall 
take cognizance of the fact that the concurrence of a 
whole community in a course of action proves that 
there is something in it which appeals to the higher 
class of human motives and is consistent with their 
ideas of morality and duty. 

Every law student recognizes malicious jjurpose as 
an essential element of crime. He also learns Irom 
his elementary books to distinguish between the wrongs 
which shock the common conscience ot men, and those 
which are violations of conventional rules based on ex- 
pediency ; — between the mala in sc 2.nd the mala pro- 
hibita. Misdeeds of the latter class are justly treated 
as crimes because the wanton challenge of the right ot 
a State to fix within reasonable limits its own system 
of order, implies a purpose hurtful to others, and whicli 
falls properly under the legal definition of malice. 
But when the numbers of those who seek to change 
the government are so great as to give the movement 
the character of a serious attempt at revolution, the\' 
appeal to a right which all republicans recognize as 
fundamental, and which, therefore, in a proper case ab- 



]6 An .iddrcss : 

rogates and overrides the law which would fix the 
criminality of one or a few persons who should alone 
attempt the same thing-. The line which marks the 
' proper case ' in which this fundamental right may be 
invoked is necessarily vague. Each case must be set- 
tled by a sagacious judgment upon its own circum- 
stances; for as it must be exceptional in its nature, the 
hypothesis excludes it from the application of any 
strictly defined rule, it is an appeal from the statutes 
of nations to the reserved rights of humanity, and those 
who make the appeal must see to it at their peril that 
their cause is one which will justify them before God 
and men. 

Consistently with this view of the character of men's 
actions, we find the great and acknowledged authori- 
ties drawing broadly the distinction between political 
and common offenders in their character and treat- 
ment. 

Burke tersely combines his own and Lord Coke's 
opinions in that striking passage of his plea for Amer- 
ica when he says, " The general sense of mankind tells 
' me that those offenses which may possibly arise from 
' mistaken virtue, are not in the class of infamous ac- 
' tions. Lord Coke, the oracle of the English law, con- 
' forms to that general sense when he says that ' those 
' things which are of the highest criminality may be of 
' the least discrrace.' "'"'' 

Mr. Freeman, the English historian of the Norman 
conquest, and whom the intellectual world has already 
recognized as a master in his department, writing du- 
ring the progress of our own recent struggle, in his 



'Biirke's Bristol letter. 



Historical Maxims for Troubled Times. 1 7 



' History of Federal Governments,' reiterates the lesson, 
" a historical student, he says, soon learns that a man is 
' not morally the worse for being Whig or Tory, Cath- 
' olic or Protestant, Aristocrat or Democrat, Unionist 
' or Confederate. He soon learns to sympathize with 
'individuals among all parties, but to decline to throw 
' in his lot unreservedly with any party. But he will 
' not carry his political toleration so far as to confound 
' political differences and moral crimes.""' 

The o^round on which this writer would determine 
the practical mode of treating political offenses seems 
to be solid. We should never forget the distinction be- 
tween the common enemy of society whose degraded 
selfishness may show itself in any of the forms of low 
vice from lying to murder, and the man who may really 
believe he is doing good service to God and his coun- 
try in committing a purely political violation of our 
laws, even to the extent of treason. But we should 
with equal clearness recognize the duty laid upon us to 
uphold what seems to us the right, even to the destruc- 
tion and death, if need be, of him who attacks it. Yet 
if this vigor of combat or unflinching firmness of judi- 
cial sentence be ruled by the principles I have endeav- 
ored to state, it will be wholly free from the elements 
of personal rancour or vengeance, as well as from the 
mingled horror and detestation which is rightly visited 
upon the robber or assassin. 

Upon this subordinate topic, the folly as well as 
wronof of lettinof venofeance be heard in conflicts grow- 
ing out of political questions, it were easy to multiply 
authorities ; but I have only time to quote the words of 

Hist. Fed. Gov. Int. XI. 



1 8 An Address 



Guizot in his introciuctor)' chapter of the History of the 
great English revolution, where, after nobly cleclaring 
that the great movement was twice successful, once in 
ofivincf constitutional o^overnment to Encjland, and atrain 
in indirectly establishing republicanism upon this west- 
ern continent, he still has to pass judgment upon some 
extreme and unjustifiable excesses of passion, enouncing 
the general truth that " vengeance not only disfigures 
' but destroys the essential character of justice ; and 
' passion, arrogantly asserting its right, goes beyond 
' any show of right, and even beyond its own purpose.""* 

Another maxim constantly recurring in History 
and almost as constantly forgotten in troubled times, 
is that under institutions at all free, solid peace can 
only be built upon the general consent of the governed, 
and especially upon the assent and support of the class- 
es which include the intelligence, the energy and the 
capital of the community in a preponderating degree. 

At the close of a war resulting in the suppresssion 
of a great revolt, history plainly teaches that but one 
alternative is open to the successful government: either 
frankly to ignore all rights of the conquered commu- 
nity to self-government, and impose upon it a despotic 
foreign rule supported by arms, or at once to settle up- 
on the best plan of adjustment which can obtain the 
active co-operation and support of the classes I have 
named. This does not mean that the advantages of suc- 
cess shall be thrown away ; for a people which acknowl- 
edges that it is conquered, and knows that the victor 

••■'"La vengeance non-seulement d6figure, mais altere, nu fond, la justice; 
"et la passion, fi&rc de son droit, va plus loin qu'elle n'en a le droit, et 
" niOnu' le dessein." Hist. Rev. Andeterro. vol. 1, p. 0. 



Historical Maxims for Troubled Times. ig 



may act upon the first part of the alternative I have 
stated, is at least open to reason and considerations of 
prudence. Experience shows that men generally un- 
derstand the essential questions at issue in such a strife 
and yield to the forcible decision of them ; while it 
shows also with equal clearness that only what is thus 
acquiesced in is permanently gained. Here again I 
must recur to Guizot for the most philosophic and com- 
pact statement of the doctrine I am ])resenting: " So 
' long," says he, "as the ruling power is not acknowl- 
' edged and supported by the men whose position, 
'whose interests, and whose customs make them its 
' natural allies, nothing is completely settled nor solidly 
' based."" _He gives to Cromwell the credit of under- 
standing and acting upon this with the instinct of a 
great statesman. Indeed, rulers of positive ability and 
strong character are less likely to err in this matter 
than mediocre men ; for their confidence in their own 
resources and their faith in their own strengrth makes 
them estimate the danger of opposition less than weaker 
men would do. In such cases courage is true wisdom. 
I shall have time to notice but one more maxim, 
namely, that of all means which governments adopt for 
their security none have proven more worthless and 
more vicious than the exaction of Test Oaths of what- 
ever description. It would be almost impossible to 
find an instance in which they have been of the slight- 
est use, or in which they have not directly and power- 



■■■ " Tant que le pouvoir n'ost pas accepts ot soutenu par les hommes quo 
" leurs position, leurs interC'ts, leurs habitudes rendent ses allies naturels, 
" rieu n'est coinpletemcnt ordonue, ni sol idem cut I'onde." Hist. Hew Aug., 
vol. 1, p. r)2. 



20 An Address : 



fully tended to produce the very dissatisfaction they 
were meant to quiet. The evidence of history has been 
so explicit and conclusive in this respect that the most 
cursory reading of its pages makes us wonder how so 
plain a truth could by any possibility be overlooked, 
The examples, ancient and modern, are so numerous 
and so striking, and many of them so connected with 
the most familiar and attractive passages of human ex- 
perience, that it would seem as if no person of the most 
rudimentary knowledge of the subject could fail to fmd 
them trooping up in his memory the moment the sub- 
ject is broached. 

It would be a curious and attractive problem in 
ethics to inquire how it is that men seem impelled b)' 
some irresistible fatuity to bind the consciences of 
others by tests and sanctions of whose folly they can- 
not be ignorant and whose mischievous tendency is so 
overwhelmingly proven. I have sometirhes thought 
we must attribute it to a remnant of some feline trait 
in our nature, that delights in torture of victims and 
finds some sort of sport in it. The old barbaric meth- 
ods of rack and boot are out of date, but apparently the 
"old Adam" is not so wholly dead but that we find 
some satisfaction in useless pains infiicted upon the 
mind and conscience. 

One cannot help sympathizing with the naive dis- 
tress of old Lord Wharton, a soldier of the Long Par- 
liament, who near the end of a very long life, in Wil- 
liam and Mary's time, found himself obliged to oppose 
a new iteration of the old folly in the form of another 
abjuration bill against the Stuarts. He said "that he 
' was a very old man, that he had lived through troubled 



Historical Maxims for Troubled Times. 21 



' times, that he had taken a great many oaths in his 
' day, and was afraid he had not kept them all. He 
' prayed that the sin might not be laid to his charge ; 
' and he declared that he could not consent to lay any 
' more snares for his own soul and the souls of his 
' neighbors."'"' 

Macauley puts the general principle tersely in sum- 
ming up the arguments against the bill just referred to, 
saying, "that among the many lessons which the troubles 
'of the last generation have left us, none is more plain 
' than this, that no form of words, however precise, no 
' imprecation, however awful, ever saved or ever will 
' save a government from destruction."!^; 

Guizot uses very similar language, classing test 
oaths and confiscations among " those means of safety 
'which are intrinsically vicious, and which, if they save 
'a cause for a few days, do so only to lose it a little 
' later."t 

From the election of the Long Parliament to the 
last eftbrt for the restoration of the Stuarts in 1745, 
there was a constant succession of test oaths which did 
not test ; jurations and abjurations that bound nobody's 
conscience Each party in turn forgot its own perjuries 
and became in turn as fierce to impose an oath upon 
others as if it had no personal consciousness of its failure 
to bind. The men who overthrew the monarchy had 
sworn that they proposed no change in the government, 
and only four months before Charles 2d was acknowl- 
edged King they wanted a fresh abjuration of his title. 



♦Macauley — Hist. Eng., 5, 375. %id., 5, 37^. 

t" Ces moyeus de nature vicieusr. (lui iic saiivi'iit (|iK'l(|nes jours unc 
"cause, «jue ])i)ur la perdrc un |K'1i jilns tanl."" Hist. \W\'. \\vjl.. 1, •'>'). 



.L 



22 A n A d dress : 

At that time the sturdy Puritan, Col. Hutchinson, re- 
minded them that their oaths so often required and 
taken, luul only multiplied the sins of the nation by 
provoking- numerous perjuries. Yet after a century of 
this sort of experience the perennial faith in such meas- 
ures is so little weakened that it was resorted to as if it 
were a sure specific for political disaffection. Onslow, 
Speaker of the House of Commons, says of it, " it was 
' a strange as well as ridiculous sight to see people 
' crowding at the Quarter Sessions to give a testimony 
' of their allegiance to a government, and cursing It at 
' the same time forgiving them the trouble of so doing 
' and for the fright they were put into by it ; and I am 
'satisfied more I'eal disaffection to the King and his 
' family arose from it than from anything which hap- 
' pened in that time.""" 

Lord Mahon, the historian of the reign of George 
2d, says most of the Jacobites took the abjuration oath, 
"saying they had rather venture themselves in the 
' hand ot God, than of such men as they had to do 
' with." He adds that the oath, " however it might tor- 
' ture their consciences, did not influence their conduct. 
' Such I fear is the inevitable result of any oath im- 
' posed by any government for its security," and from 
the numerous examples in different countries to which 
he alludes he draws the conclusion, that " though we 
' might reasonably infer from theory that men whom 
' we find honorable and high minded in private life, 
' and in far more trifling transactions, would be scrupu- 
lously bound by the solemn and public obligation of 
' an oath, yet experience, I apprehend, would teach the 
' very reverse."f 

_*Mahon Hist., Eiig.. 2, 41. ■\iii. 42. 



Historical Maxims for Troubled Times. 2,^ 



Hallam, in his Constitutional History of England, 
passes the same judgment upon another of these tests, 
that of i/or, declaring that it wholly failed of its pur- 
pose, and with a sentence which should have double 
weight as coming from a historian at once so liberal 
and so judicial in temper, speaking of a policy which 
had been that of his own party, he adds, " I must con- 
' fess that of all sophistry that w^eakens moral obliga- 
' tion, that is the most pardonable which men would 
' employ to escape from this species of tyrann}'."""' 

One would naturally suppose that here at least was 
one of those blunders which had become antiquated, 
and that such a lesson of history could have no appli- 
cation in our own day. But as if to demonstrate how 
stubborn the tendencies of human nature are, this very 
blunder was one of those we most faithfully copied at 
the close of our own civil war. We must look for the 
* progress of the age,' not in the exemption from chronic 
follies, but in the mild form of the attack and the speed 
of our recovery. As early as 1867 the Governor of 
Missouri had discovered and reported to the Legisla- 
ture that the test oaths had proven "an utter failure as 
' a means of protecting the ballot box from the votes 
' of disloyal persons," though with tenacious faith in ex- 
ploded doctrines the imposition of the test had been 
embodied in the State Constitution adopted only two 
years before. 

As to our national legislation, the remnant of our 
proscriptive measures which still exists, might make the 
time-honored intelligent traveller from Japan or Persia 
believe seriously in our attachment to what a witty 

*Coiist. Hist. Eng; , Ch. XV. 



2-f An Address: 

writer has called the "bouffe" in politics. We have a 
stringent test oath, but, we administer it only to those 
wlio we know can take it without danger to their con- 
sciences ! We impose the ' iron-clad ' oath upon Grant, 
and Hayes, Burnside and Devens, before they can enter 
upon the duties of public office, but the intimation that 
a man had " been out " in our " forty-five " immediately 
secures the privileges of exemption ! 

We have, however, real and great reasons for con- 
gratulation that, considering the magnitude and desper- 
ate character of the war of the rebellion, and the re- 
markable difficulty of the problems it left us, the mod- 
eration of our people and their faithfulness to true re- 
publicanism have left little to desire. The practical 
conduct of the people has generally been wiser than 
their legislation, and we can afford to laugh at some 
absurdities in our statutes when we remember that 
there has been no necessity for a strong central gov- 
ernment to hold back a conquering and excited popu- 
lace from cruel revenge or bloody proscriptions. 

It is no small cause for satisfaction that we are able 
to say with truth that this last and most terrible test of 
the strength of republican government has only con- 
firmed the opinion of Stuart Mill, of Grote and of 
Freeman, that popular government is such an educator 
of the people themselves, that their rule is milder, more 
humane and liberal to those in their power, than any 
other form of rule. 

But a full recognition of this comforting fact is con- 
sistent also with the desire to learn more perfectly the 
lessons taught by experience, and with feeling an hon- 
est pride in working zealously to make our practices 



Historical Maxims for Troubled Times. 2^ 



and our institutions accord more nearly with our idea 
of what popular government should be. 

Although it might seem, therefore, as if it were 
rather late to sum up the historical lessons which we 
have neglected or misread, it should be remembered 
that the time for fixing deeply the practical teachings 
of experience is generally that period of sober reflec- 
tion when the blinding and misleading passions of 
fierce strife are past, and when the wisest and coolest 
must sadly admit that anger makes fools of men in 
some way or other. 

The maxims I have quoted and commented upon 
are a mere handful of the pregnant texts which history 
abounds in. I offer them only as examples of topics of 
ever-living interest, apposite to our own condition and 
recent experience, tempting the student on to a wider 
reading of the events from which great writers have 
drawn such broad conclusions. Each is a m&YO. syllabus 
of a wise opinion in a world's ' case ' behind it ; and the 
ripeness of the judicial wisdom will only be fully felt 
and understood when we make ourselves familiar with 
all the intensely absorbing details of the cause itself as 
history presents it. 

I have thought, too, that for those just entering up- 
on the profession of the law, it would not be amiss to 
be reminded that the history of their people is the his- 
tory of their constitution ; that the fundamental law of 
the' land undergoes changes both of form and of inter- 
pretation in such convulsive epochs ; and that conse- 
quently the intellectual furnishing of a lawyer will be 
sadly deficient, even in what may be regarded as strict- 
ly professional, if he fails to give careful study to the 



26 An Address: 



course of events which fixes the spirit of the laws and 
determines the line of progress or its opposite that the 
whole legislation of his country shall take. The higher 
walks of the profession are only open to those who add 
to an accurate and read)' knowledge of its technicali- 
ties, a broad grasp of the principles of government and 
a deep and earnest sympathy with real human progress. 

Nor should we ignore the fact, that however honor- 
able may be the wish to stick closely to professional 
life, the lawyer, in all representative governments, is 
almost of necessity the advocate of the political party 
to which he is attached, and can hardly avoid some re- 
sponsibility in public affairs even if he would. He is, 
of all professional men, the one of whom the commu- 
nity most naturally expects familiar knowledge of his- 
tory as bearing upon the public questions of the day. 
The bar ought to be, therefore, the repository of sound 
knowledge in regard to all the lessons of experience, 
and to it the people should be able at all times to look 
for such solid advice and guidance as shall save us from 
the constant repetition of blunders which the civilized 
world should, before this, have outgrown. 

The few examples I have put before you relate only 
to the maxims which should be admitted as the unwrit- 
ten law of periods of great convulsions ; but it is only 
repeating a hackneyed truth to say that crudeness in 
legislation is the peculiar weakness of democratic gov- 
ernments. There is scarce any subject upon which 
laws are made, in regard to which much knowledge 
cannot be gained by diligent study of other people's 
experiments and successes or failures. The student is 
only more and more deeply impressed with the fewness 



Historical Maxims' for Troubled Times. 2'/ 

of new things under the sun, and with the singular con- 
stancy with which men go on repeating each others 
mistakes. It seems to me, therefore, a thing to congrat- 
ulate the young lawyer upon, that within the legitimate 
scope of his professional reading, he may properly rank 
so fascinating a study as that of general history, and 
that he may honorably aim at making himself felt in 
his community as a teacher of those lessons of experi- 
ence which should prepare and ensure the good result 
of strengthening all wise and moderating influences, 
and so oreventino- in the future the recurrence of those 
extravagances in governmental action which have 
been the reproach of all the great movements which 
have marked the world's progress. 

When we add to this the cheering fact to which al- 
lusion has already been made, that free peoples pro- 
gress most rapidly in that self-education which is the 
best security for good government, the encouragement 
to assist them in the work is redoubled, and the law 
student may place before himself the hope of a career 
most attractive to a generous mind, a large activity in 
helping the realization of glorious theories of human 
advancement, joined to a philosophic study of all the 
most interesting phenomena of human experience in 
the past. 



1 




HISTORICAL MAXIMS , ■ 

1 


FOR TROLJBLED^=-riMES, 




^ItT ^3D.DK>ESS 


'.■LAW 


BEFDRR CHE 

DEPARTMENT OF YALE C0LLE(;E, 


,-• ,.** 


Al:_^Q##ENCEMENT, JUNE 27, 1S77. 








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